Choice of law – Florida prevails allowing retroactive recissionFebruary 3, 2016
Compas Med., P.C. v Infinity Group, 2016 NY Slip Op 50042(U)(App. Term 2d Dept. 2016)
Florida law prevails again, and the decision makes sense. I imagine of Plaintiff procured an affidavit from Assignor and raised an issue of fact, this case would have been tough on defense to prove. And, do not forget about Florida Attorney fees.
“The vehicle involved in the accident at issue, which occurred in New York, was being driven by plaintiff’s assignor, the daughter of the policyholder. At the time of the accident, the vehicle was insured by defendant under a Florida automobile insurance policy. After defendant’s investigation into the accident revealed that the insured had not resided at the Florida address listed on the insurance application and that the vehicle had not been garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.
In order to show that it properly voided a motor vehicle policy ab initio, in accordance with Florida law, an insurer must demonstrate that it had given notice of the rescission to the insured and that it had returned or tendered, within a reasonable time after the discovery of the grounds for avoiding the policy, all premiums that had been paid (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its senior litigation specialist and accompanying documents, that it had fully complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4[App Term, 2d, 11th & 13th Jud Dists 2012]).”